Mayfield Pennington

Patent Trials and Appeals Board

Apr 8, 2020

13242522 - (D) (P.T.A.B. Apr. 8, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/242,522 09/23/2011 MAYFIELD PENNINGTON PENNINGTON-001-US 5659
62008 7590 04/08/2020
MAIER & MAIER, PLLC
345 South Patrick Street
ALEXANDRIA, VA 22314
EXAMINER
FISCHER, RAE
ART UNIT PAPER NUMBER
3784
NOTIFICATION DATE DELIVERY MODE
04/08/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket@maierandmaier.com
maierandmaier_PAIR@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MAYFIELD PENNINGTON

Appeal 2018-003230
Application 13/242,522
Technology Center 3700
____________

Before JENNIFER D. BAHR, MICHAEL L. HOELTER, and
NATHAN A. ENGELS, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4, and 6–20, which constitute all
the claims pending in this application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “the
assignees of record, Asger Christensen and Elizabeth Christensen.” Appeal
Br. 2.
Appeal 2018-003230
Application 13/242,522

2
CLAIMED SUBJECT MATTER
The disclosed subject matter pertains to a “method and apparatus for
facilitating physical training and conditioning.” Spec. ¶ 3 (“Summary”).
Claims 1, 11, and 15 are independent. Claim 1 is illustrative of the claims
on appeal and is reproduced below.
1. A training device comprising:
a rectangular cuboid frame having an interior opening
and at least one support on a front side of the frame;
at least one piece of conditioning equipment supported
on the frame by the support;
at least one second piece of conditioning equipment
supported on a top portion of the frame, proximate the front
side of the frame;
at least one resistance harness directly connected to a rear
side of the frame, wherein the at least one resistance harness has
a portion thereof selectively attachable to a user to exert a
resistance force on the user in the direction of the rear side of
the frame when the user is moving toward the front side of the
frame;
at least one second resistance harness directly connected
to the rear side of the frame and positioned below the at least
one first resistance harness to exert a second resistance force on
the user in the direction of the rear side of the frame when the
user is moving toward the front side of the frame; and
a cardiovascular exercise machine disposed within the
interior opening of the frame,
wherein the at least one piece of conditioning equipment
is positioned so as to facilitate use of the at least one piece of
conditioning equipment and the at least one second piece of
conditioning equipment in immediate succession, while
simultaneously using the cardiovascular exercise machine, the
at least one resistance harness, and the at least one second
resistance harness.
Appeal 2018-003230
Application 13/242,522

3
EVIDENCE
Name Reference Date
Luck US 4,569,401 Feb. 11, 1986
Rempe US 6,554,747 B1 Apr. 29, 2003
Jutte US 2010/0227742 A1 Sept. 9, 2010
REJECTIONS
Claims 1, 2, 4, 6, 7, 11, 12, and 15–18 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Luck and Rempe.
Claims 8–10, 13, 14, 19, and 20 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Luck, Rempe, and Jutte.
ANALYSIS
The rejection of claims 1, 2, 4, 6, 7, 11, 12, and 15–18
as unpatentable over Luck and Rempe
Appellant argues claims 1, 2, 4, 6, 7, 11, 12, and 15–18 (i.e., all the
claims under this rejection) together, and particularly independent claims 1,
11, and 15. Appeal Br. 5–9. We select claim 1 for review, with the
remaining claims standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 1 recites at least first and second conditioning equipment
supported on a frame; at least first and second resistance harnesses attached
to a user and connected to the frame; a cardiovascular exercise machine
within the frame; and, the first and second conditioning equipment
positioned so as to facilitate use thereof “in immediate succession, while
simultaneously using the cardiovascular exercise machine.” The Examiner
primarily relies on Luck as disclosing these limitations (with the
understanding “that rearranging parts of an invention involves only routine
Appeal 2018-003230
Application 13/242,522

4
skill in the art”), but the Examiner relies on Rempe for disclosing both a
“cuboid frame” and resistance harnesses attached between a user and the
frame. Non-Final Act. 4 (discussing what the Examiner considers to be an
obvious rearrangement of parts to locate the second piece of conditioning
equipment (large punching bag 5) proximate the front side of the frame (near
punching ball station 3)). For clarity and understanding, we reproduce
below both Appellant’s Figure 1 (left) and Luck’s Figure 1 (right).

Appellant’s Figure 1 (left) depicts first and second conditioning equipment
110, 112 and cardiovascular machine 114. Luck’s Figure 1 (right) depicts
first and second conditioning equipment 3, 5 and cardiovascular machine 2.
The Examiner explains that it would have been obvious to “provide a
resistance harness, as taught by Rempe, in order to stabil[ize] the user during
exercise.” Non-Final Act. 4; see also Ans. 15 (explaining that “when riding
[Luck’s stationary bicycle 2], the user moves about a great deal. The
harness is present to keep the user stable . . . (as in the case of injured,
elderly or physically challenged users)).”
Appellant disagrees with the Examiner’s findings and conclusions for
multiple reasons. First, Appellant contends, “Luck does not teach or suggest
Appeal 2018-003230
Application 13/242,522

5
each and every limitation of the independent claims.” Appeal Br. 5.
However, the Examiner’s rejection is not based on Luck alone, but instead is
premised on claim 1 being obvious in view of the indicated combination of
Luck and Rempe. See Non-Final Act. 3–6. The Examiner responds, “[o]ne
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references.” Ans. 6–7 (citations
omitted). Accordingly, Appellant’s focus on Luck alone is not persuasive of
Examiner error because Appellant is not addressing the Examiner’s
rejection.
Appellant next contends, “Luck is not arranged to facilitate use of the
second piece of conditioning equipment (punching bag 5) on the back
section of the frame simultaneously with the cardiovascular exercise
machine (stationary bicycle 2), which faces the front section of the frame.”
Appeal Br. 6. The Examiner explains, “Luck recites the benefit of
simultaneously working the arms and legs (Col. 1, Lines 25–26).” Ans. 8.
Hence, the Examiner reasons “that it would be beneficial to use either piece
of conditioning equipment, or both, while simultaneously riding the bicycle”
and that “[s]uch an end result can be achieved by a simple rearrangement of
parts” thereby positioning them “for optimal use” (e.g., closer together).
Ans. 8. In other words, “[m]erely moving one piece of conditioning
equipment in the structure cannot provide a patentable distinction.”2 Non-
Final Act. 6. There is merit to the Examiner’s findings and reasoning.

2 “It would have been obvious to one of ordinary skill in the art to place both
the first and the second conditioning device in a location such that it could
also be used simultaneously while riding the bike to allow simultaneous
exercise of the arms and legs, the very motivation taught by Luck.” Non-
Final Act. 5; see also Luck 1:24–30.
Appeal 2018-003230
Application 13/242,522

6
Accordingly, Appellant’s contentions are not persuasive of Examiner error,
nor are they persuasive that the suggested rearrangement of parts would have
been non-obvious to a skilled person.
Appellant further contends that Luck’s arrangement fails to teach the
limitation of the pair of conditioning equipment (i.e., Luck’s 3, 5) as being
usable “in immediate succession while simultaneously using the
cardiovascular exercise machine (stationary bicycle 2).” Appeal Br. 6. In
other words, “transitioning from punching ball 3 to punching bag 5 would at
least require dismounting of stationary bicycle 2, turning around and
walking to the opposite section of the frame, and vice versa.” Appeal Br. 6.
The Examiner disagrees stating, “it would be clear to even the most
casual observer, that the first and second pieces of conditioning equipment
of Luck [i.e., 3, 5] can be used one after the other, i.e., in immediate
succession.” Ans. 8–9. The Examiner notes, “[n]either the claims, nor the
written description, expound on the meaning of ‘immediate succession,’”
and as such, the Examiner ascertains “that the limitation ‘in immediate
succession’ means ‘one right after the other.’” Ans. 9. More importantly,
rearranging punching ball station 3 and large punching bag 5 so that they are
closer together, as proposed by the Examiner (see above) would further
“minimize the time gap” between their successive uses and permit use of
both pieces of conditioning equipment (punching ball station 3 and large
punching bag 5) while simultaneously using the cardiovascular exercise
machine (stationary bicycle). Ans. 9. There is merit to the Examiner’s
findings and reasoning. Accordingly, Appellant’s contentions are not
persuasive of Examiner error, nor are Appellant’s contentions persuasive
that this “immediate succession” limitation is not obvious in view of Luck.
Appeal 2018-003230
Application 13/242,522

7
Additionally, Appellant contends that Luck fails to teach that “the
second piece is proximate the same side of the frame as the first piece of
equipment.” Appeal Br. 7. This is because “Luck explicitly shows
punching ball 3 on a front section and punching bag 5 on the back section.”
Appeal Br. 7. The Examiner, on the other hand, explains, “the generally
accepted meaning of the word ‘proximate’ is ‘near’ or ‘close,’” i.e., a
“relative term.”3 Ans. 10 (citation omitted). Luck’s bags 3 and 5 are
suspended from the same top frame member “just a bicycle-length distance”
away when not rearranged as discussed above. Ans. 10; see also Luck Fig.
1. Because “proximate” is relative, Appellant does not explain how, after
bags 3 and 5 are rearranged (see Ans. 11; Non-Final Act. 4), such
rearrangement would fail to bring them “proximate [to] the same side of the
frame” (i.e., the “front side”) as argued. Appeal Br. 7.
Appellant further contends that “modifying the position of punching
bag 5 would render the entire structure of Luck unstable, and therefore
unsatisfactory for its intended purpose.” Appeal Br. 7. This is because bag
5 “is ‘strategically positioned’ on the back section ‘to provide stability for
the entire structure.’” Appeal Br. 7 (referencing Luck 2:27–29). The
Examiner points out, however, that Luck also discloses barbell 28 mounted
on this back section (see Luck 2:27–29), and there is no indication that
removal of the barbell therefrom would render Luck unstable. “It is
reasonable to assume that the punching bag could similarly be moved
without catastrophe.” Ans. 13. Appellant “provides no support for this

3 This term is not employed or defined in Appellant’s Specification;
Appellant does not proffer a different definition thereof; and, Appellant does
not dispute the Examiner’s definition of this term.
Appeal 2018-003230
Application 13/242,522

8
conclusion” (Ans. 11) and we are instructed that “[a]ttorney’s arguments in a
brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974). There is merit to the Examiner’s findings and
reasoning, and, further, Appellant’s contentions are not persuasive of
Examiner error. Nor are Appellant’s contentions persuasive that “modifying
the position of punching bag 5 would render the entire structure of Luck
unstable, and therefore unsatisfactory for its intended purpose.” Appeal Br.
7. Moreover, to the extent that any additional redesign or counterbalancing
might be required to permit the rearrangement of parts (movement of bag 5
to the front side of the frame), Appellant does not present persuasive
evidence or technical reasoning to show that such modifications would have
been beyond the technical grasp of a person having ordinary skill in the art.
“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421(2007).
Thereafter, Appellant addresses Rempe contending, “Rempe does not
cure the deficiencies of Luck.” Appeal Br. 7. More specifically, Appellant
argues that Rempe “merely discloses an exercise device and method of use
including” housing and harness assemblies and biasing members, but Rempe
does not teach or suggest positioning at least one piece of conditioning
equipment so as to facilitate use of two pieces of conditioning equipment “in
immediate succession, while simultaneously using the cardiovascular
exercise machine.’” However, Rempe was not relied on to teach such
features, but instead to disclose the use of a cuboid frame and resistance
harnesses connecting the user directly to the frame. See Non-Final Act. 4;
see also Ans. 14. Appellant’s contentions on this point are not persuasive of
Examiner error.
Appeal 2018-003230
Application 13/242,522

9
Appellant additionally contends, “there is no sufficient evidence of
record for the required motivation to modify the Luck device by
incorporating Rempe’s harnesses.” Appeal Br. 8. Appellant understands the
Examiner’s stated motivation is based on “stability” (Non-Final Act. 4), but
Appellant contends that the cardiovascular bicycle employed “in Luck is by
definition ‘stationary,’ the user is not moving” and hence “there would be no
motion for any harness to resist, rendering any such device superfluous.”
Appeal Br. 8; see also Luck 1:57–58.
Indeed, Luck teaches “stationary bicycle 2.” Luck 1:57–58.
However, as stated above, “[t]he harness is present to keep the user stable.”
Ans. 15. Appellant does not dispute the Examiner’s findings that “when
riding, the user moves about a great deal.” Ans. 15. “Importantly, the
device of Luck is a stationary bike that the user rides while striking a
punching bag. The punching action has a high potential to set the user off
balance on a bicycle.” Ans. 15–16. This would particularly be likely “in the
case of injured, elderly or physically challenged users.” Ans. 15. Appellant
does not dispute these findings, and as such, Appellant’s contention above
regarding a lack of motivation is not persuasive of Examiner error.
Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting claims 1, 2, 4, 6, 7, 11, 12, and 15–18 as
unpatentable over Luck and Rempe. We sustain their rejection.
The rejection of claims 8–10, 13, 14, 19, and 20
as unpatentable over Luck, Rempe, and Jutte
Appellant argues all these claims together. See Appeal Br. 9–10. We
select claim 9 for review, with the remaining claims standing or falling
therewith.
Appeal 2018-003230
Application 13/242,522

10
The Examiner relies on Jutte for disclosing “a pull-up bar coupled to
the frame (150; Paragraph 27) and a dip bar coupled to the frame (100;
Paragraph 27).” Non-Final Act. 7. Appellant does not dispute these
teachings, but instead contends, “Jutte does not cure the deficiencies of Luck
and Rempe.” Appeal Br. 10. However, we are not persuaded there are
deficiencies in the combination of Luck and Rempe that are in need of
curing.
Accordingly, and based on the record presented, we are not persuaded
of Examiner error. We sustain the Examiner’s rejection of claims 8–10, 13,
14, 19, and 20 as unpatentable over Luck, Rempe, and Jutte.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4, 6,
7, 11, 12,
15–18
103(a) Luck, Rempe 1, 2, 4, 6, 7,
11, 12, 15–
18

8–10, 13,
14, 19, 20
103(a) Luck, Rempe, Jutte 8–10, 13,
14, 19, 20

Overall
Outcome
1, 2, 4, 6–20
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED